LILI LESTARI AND ANOTHER v. MR WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD

CAMP 249/2020

[2021] HKCA 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 249 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 545 OF 2018)

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DECISION

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.  By summons dated 21 December 2020, the applicants applied to this Court for leave to appeal against the decision of Deputy High Court Judge Bruno Chan dated 1 December 2020 (“the Deputy Judge’s EOT Decision”) refusing to grant an extension of time for them to appeal the Deputy Judge’s earlier decision refusing their application for leave to apply for judicial review dated 30 June 2020 (“the Deputy Judge’s Leave Decision”).

2.  Having considered the papers, we are of the view that it is appropriate to determine the present application on paper without a hearing under Order 59, rule 14A of the Rules of the High Court (“RHC”).

BACKGROUND

3.  The 1^st applicant is a national of Indonesia.  She previously worked as a foreign domestic helper in Hong Kong. She last entered Hong Kong on 5 March 2013 as a foreign domestic helper, with permission to stay until 5 March 2015 or 14 days after the termination of her employment contract, whichever was the earlier.  Her employment contract was terminated early on 5 May 2013.  She was arrested by the police on 18 August 2013 for overstaying, and was subsequently referred to the Immigration Department for investigation.  She then raised a non-refoulement claim, and was released on recognizance on 5 October 2013 pending the determination of her claim.  She later gave birth to a daughter, the 2^nd applicant, on 2 May 2014 in Hong Kong, and raised a non-refoulement claim on behalf of the 2^nd applicant as well.  The non-refoulement claims of the applicants were assessed jointly.

4.  The applicants’ claims were based on an alleged fear that, if they were to return to Indonesia, they would be harmed or killed by a money-lender, from whom the 1^st applicant and her husband had previously borrowed some money but they failed to repay the loan.  The factual details of the applicants’ claims were summarized by Yau J in [3] – [9] of the CALL-1 Form in HCAL 240/2016 ([2018] HKCFI 664).

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 17 April 2015, the Director of Immigration (“the Director”), having assessed the applicants’ claims based on BOR 3 risk^[1], persecution risk^[2], and torture risk^[3], rejected the Applicants’ non-refoulement claims.  The Director considered that the level of risk of harm was low because of the absence, or low intensity and frequency, of past ill-treatment from the money lender, and that the matter was a private dispute without official involvement.  The Director also considered that state protection was available and internal relocation was viable.

6.  By a Notice of Further Decision dated 13 April 2017, the Director rejected the applicants’ claims after receiving and considering additional submissions from them relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under BOR 2.

THE BOARD’S DECISION

7.  The applicants appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  They attended a hearing before the Board on 28 April 2016 in person.  The Board dismissed the appeal in a decision given on 14 December 2016.  It considered that there was no evidence of the applicants having suffered, or the applicants being at risk of suffering in the future, physical or mental pain of the required minimal level of severity.  There was no evidence of any harm or threat instigated by the State.  Even if the money lender were to assault the applicants, the money lender would not be acting for the Indonesian government.  Based on country of origin information (“COI”) materials, the Board considered that state protection was available and internal relocation was viable.

FIRST APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IN HCAL 240/2016

8.  On 22 December 2016, the applicants filed a Form 86 in HCAL 240/2016 to apply for leave to apply for judicial review of the Board’s decision.  Their grounds of application were summarised by the Deputy Judge in the CALL-1 Form in the proceedings below ([2020] HKCFI 1323), at [6]:

“(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicants;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicants resulting in unfair procedure.”

9.  Leave to apply for judicial review was refused by Yau J on 23 March 2018 (“Yau J’s Decision”) for the reasons set out at in the CALL-1 Form in HCAL 240/2016 ([2018] HKCFI 664) as follows:

“[14] I have considered the evidence of the case and the decisions of the Director of Immigration and the Appeal Board. They have looked into all the available grounds of non-refoulement claims of the applicants and I do not find any error in law or procedure.

[15] A1 submits in this application that the Appeal Board failed to carry out sufficient research and enquiries into the conditions of Indonesia and failed to have regard to the circumstances of A1 and A2, thus dismissing the appeal of the 2 applicants upon an unfair procedure.

[16] A1 also complains that the Appeal Board failed to evaluate and make a finding of whether there existed a consistent pattern of gross, flagrant or mass violation of human rights in Indonesia and wrongly applied the law and standard of proof in determination of the appeals of A1 and A2.

[17] The complaints of the 2 applicants are totally unfounded. Their non-refoulement claims and all the issues raised have been fully and fairly considered by the Immigration Department and the Appeal Board in accordance with the law and legal procedure.

[18] There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.”

THE PROCEEDINGS BELOW

10.  On 3 April 2018, the applicants, instead of lodging an appeal against Yau J’s Decision, filed another Form 86 in HCAL 545/2018 to apply for a second time for leave to apply for judicial review of the Board’s decision.  On 30 June 2020, the Deputy Judge struck out and dismissed the applicants’ second application for leave to apply for judicial review.  Having referred to Yau J’s refusal of leave in HCAL 240/2016, the Deputy Judge went on to hold that [4]:-

“[8] The Applicants] did not lodge any appeal against [Yau J’s Decision], but instead on 3 April 2018 filed another Form 86 in these proceedings for leave to apply for judicial review again of the Board’s decision, and put forward essentially the same or similar grounds as before for their intended application but none of which was found to be reasonably arguable by the court in their previous application.

[9] Clearly the principle of res judicata applies, and it is an abuse of process for the Applicants to re-litigate their case by bringing a second judicial review in respect of the same decision of the Board after they failed to obtain leave from the court under HCAL 240/2016 against which they never lodged any appeal, and also for failing to inform the Registry of the same when they filed their second Form 86 and issued their ex parte application in these proceedings, resulting in much judicial and public resources in processing these proceedings.

[10] In the premises and for these reasons, this second application by the Applicants for judicial review of the Board’s decision is hereby struck out and dismissed.”

REFUSAL OF EXTENSION OF TIME TO APPEAL

11.  On 27 July 2020, the 1^st applicant applied by summons for extension of time to appeal against the Deputy Judge’s Leave Decision.  On 14 September 2020, the 1^st applicant applied by summons to add the 2^nd applicant as an applicant for the application for extension of time to appeal against the Deputy Judge’s Leave Decision.  After a hearing on 22 October 2020 attended by the applicants in person, the Deputy Judge by a decision given on 1 December 2020 ([2020] HKCFI 2898) refused the application for extension of time to appeal for the following reasons:

“[3] In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted…

[4] In the Applicants’ case, a delay of 13 days may not be considered as insignificant, for which the 1^st Applicant explained at the hearing of their summons that they received the decision late when by then they were already out of time, but she was unable to remember exactly when the decision arrived in the mail, nor did she produce any documentary evidence such as the envelop which contained the decision with the post mark showing the date when it was dispatched, and as the court record shows that the decision was actually sent out on the same day by post to the Applicants’ last reported address, I am not satisfied that the Applicants have shown any good reason for their delay.

[5] More importantly, nor did they put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons or affirmation, and at the hearing the 1^st Applicant merely repeated their claim that they cannot return to their home country as their problem is there. As such and in the absence of any error in the decision being clearly and properly identified by the Applicants, I do not see any prospect of success in their intended appeal.

[6] In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.”

APPEAL AGAINST REFUSAL OF EXTENSION OF TIME

12.  By summons dated 21 December 2020, the applicants sought leave from this Court to appeal the Deputy Judge’s EOT Decision.

13.  The grounds of appeal, as set out in 1^st applicant’s affirmation made on 21 December 2020, were that the Deputy Judge (1) was wrong in law in holding that there was no state acquiescence or involvement; and (2) failed to provide detailed reasons in support of his decision.

14.  In their written submission on 17 May 2021, the applicants made reference to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  They also submitted that the appeal to the Board was a rehearing, and that the Board had erred by simply trying to see if it could find fault with the Director’s decision; that the Board had failed to scrutinize the Director’s decision and did not consider the country conditions of the applicants’ country of origin.  They further made reference to The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 for the proposition that a decision-maker is under a duty to act fairly.

DISCUSSION

15.  As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], whilst it is technically possible to appeal a lower court’s decision refusing an extension of time to appeal, it is more appropriate to renew the application for extension of time before this Court. The applicants’ summons of 21 December 2020 is therefore treated as a renewed application for extension of time to appeal the Deputy Judge’s Leave Decision.

16.  In Farrukh Zaib [2020] HKCA 408, at [22] to [24], the Court of Appeal further stated that in considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  Even if an applicant’s explanation for delay is not accepted, the court would still examine if he has merits in the intended appeal.  In assessing the merit of the intended appeal, the salient principles are as follows:

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard will be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board as a primary decision maker.  Assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  The Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  Since the 2^nd applicant is a small child, it is clear that she is (and was) unlikely to be able to make decisions on how her claim should be presented or make meaningful submissions on her own behalf (Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 at [46]).  Her claim should therefore be considered separately.

THE 1^ST APPLICANT

18.  As the Deputy Judge held, the 1^st applicant did not give any reasonable explanation for the 13 days’ delay in bringing the intended appeal.

19.  Further, the 1^st applicant did not appeal against Yau J’s refusal of leave.  The Deputy Judge, having found that essentially the same or similar grounds were put forward in the proceedings below as before Yau J, rightly held that the 1^st applicant was re-litigating her case.  The principle of res judicata applied and it was an abuse of process on the part of the 1^st applicant to make the second application for leave to apply for judicial.  The Deputy Judge was correct to strike out and dismiss the 1^st applicant’s application for leave to apply for judicial review in the proceedings below on the ground of abuse of process (Fabio Arlyn Timogan [2020] HKCA 971 at [25] to [29]).  In the circumstances, it was not necessary for the Deputy Judge to consider the merits of the 1^st applicant’s application.

20.  For the sake of completeness, we note that the Board rejected the 1^st applicant’s non-refoulement claim because it considered that: (1) the requisite risk of harm was not made out on the evidence; (2) state protection was available; and (3) internal relocation was viable.  These findings were within the province of the Board, and the court would not interfere with the Board’s decision unless there were errors of law or procedural unfairness or irrationality in the Board’s decision.

21.  In her affirmation me on 21 December 2020, the 1^st applicant complained that the Deputy Judge (1) was wrong in law to hold that there was no state acquiescence or involvement; and (2) failed to provide detailed reasons for his decision.

22.  In fact, the Deputy Judge did not hold that there was no state acquiescence or involvement.  As the proceedings below were struck out for abuse of process, no ruling on state acquiescence was required to be made, or was made, by the Deputy Judge.  In relation to the complaint of failure to provide detailed reasons, this ground is bound to fail as clear reasons were given for striking out and dismissing the 1^st applicant’s second application for leave to apply for judicial review.

23.  As for the submissions that high standards of fairness are required and that a decision-maker is under a duty to act fairly, no particulars have been given to identify any failure of the Board to apply such standards.  General assertions cannot constitute viable grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]).

24.  Similarly, no particulars have been given to support the complaint that the Board was only trying to see if it could find fault with, and failed to scrutinize, the Director’s decision.  Upon a reading of the Board’s decision, the complaint that the Board did not consider the country conditions of the 1^st applicant’s country of origin is also clearly incorrect.

25.  For these reasons, there is no merit and no prospect of success in or of the 1^st applicant’s application for leave to apply for judicial review and in her intended appeal against the Deputy Judge’s Leave Decision.

THE 2^ND APPLICANT

26.  The 2^nd applicant, being a minor, is not legally represented before the Board, the Deputy Judge, or this Court.  The requirement of Order 80 rule 2 of the RHC has not been complied with. Nevertheless, the Court has a discretion to treat this as an irregularity without rendering the proceedings a nullity under Order 2 rule 1 of the RHC (Zoraydah [2020] HKCA 442 at [8], fn [5], and Jassal Tajinder Kumar [2021] HKCA 124 at [27]).

27.  Although the 2^nd applicant is a minor and her position should be considered separately from the 1^st applicant, unlike the situation in Fabio Arlyn Timogan where there were materials specific to the minors’ claims which had not been advanced, or adequately advanced, to the Board[5], there was no such material in this case in respect of the 2^nd applicant.  The 2^nd applicant’s claim is the based on the same evidence as the 1^st applicant’s claim.

28.  In the present case, the Board did not reject the 1^st applicant’s evidence about the loan and the threats from the money lender, but found that:

“17. … There are many places in Indonesia, at least other than [the 1^st applicant’s] home locality, where she and [the 2^nd applicant] can safely reside without undue hardship …

22. Neither [the 1^st applicant] nor [the 2^nd applicant] has suffered any assault or injury, let alone serious injury which would place them within the criteria … no substantial ground to believe they will face any future risk of serious harm”.

29.  Reading the Board’s decision as a whole, although the Board did not deal with the 2^nd applicant’s case under a separate section from the 1^st applicant, it did not mean that her case was not given due consideration.  Her claim was not rejected simply because the 1^st applicant’s claim was rejected.

30.  As the Court of Appeal held in Rina Mulyani [2021] HKCA 1156 at [25], if the court is satisfied that the Board has achieved high standards of fairness in dealing with a minor’s claim and there is no underlying matter that may support minor‑specific non‑refoulement grounds which has not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  We are satisfied that this is the situation here.

31.  In our view, there is no merit and no prospect of success in or of the 2^nd applicant’s application for leave to apply for judicial review, or her intended appeal against the Deputy Judge’s decision to strike out and dismissed her application.

DISPOSITION

32.  For the above reasons, the applicants’ summons dated 21 December 2020 is dismissed, with the 2^nd applicant’s lack of legal representation being treated as an irregularity without rendering the proceedings a nullity.